Fish barriers the new ‘McCleary’ for lawmakers

Fish barriers the new ‘McCleary’ for lawmakers
A reckoning may be on the horizon for state lawmakers in the coming years as they look for money to remove hundreds of fish passage barriers as part of a federal court injunction. Photo: freepik.com

For several years the 2012 state Supreme Court’s McCleary decision regarding the legislature’s legal obligation to fund basic education dominated the legislative sessions as lawmakers struggled to come up with the billions in new funding necessary to comply with the court order. The state now faces a similar dilemma with a 2013 federal court injunction mandating the state fix hundreds of road culverts managed by the Washington State Department of Transportation (WSDOT) by 2030.

While the estimated cost of doing so varies, WSDT earlier this year put the final price tag at around $3.8 billion. A timeline created by the agency to ramp up project work and meet the 2030 deadline requires the state begin investing more than half a billion dollars per biennium starting in the 2021-23 budget cycle. However, current appropriations for fish barrier removal in the 2019-21 biennium is less than half of the $275 million requested by WSDOT, and though that full amount will be invested in culvert projects through some fiscal maneuvering, WSDOT officials say that won’t work the next time around.

Meanwhile, Washington Policy Center Environmental Director Todd Myers told Lens that whatever solutions are proposed next year, expect them to include new taxes as did several bills introduced this session. However, he added: “I think they will not be able to find the new taxes to fund it.”

One of the tax proposals introduced this session to pay for fish barrier removal was made by Governor Jay Inslee. HB 1228 would have modified the state real estate excise tax (REET) and a new vehicle weight fee schedule, with the new revenue dedicated to culvert projects. Inslee’s 2019-21 budget proposal included $296 million for fish barriers (page 32).

Another proposal came in the form of a 10-year transportation package sponsored by Senate Transportation Chair Steve Hobbs (D-44). SB 5971 would have imposed a carbon tax, slightly increased the state gas tax and added a sales tax on auto and bicycle parts. However, neither bill cleared their respective chambers.

Ultimately, the legislature provided only $100 million for culvert work in the 2019-21 transportation budget. However, last month Inslee ordered WSDOT to reallocate an additional $175 million to fish barrier removal.

WSDOT Fish Passage Delivery Program Manager Kim Mueller told Lens that funding will come from underspent projects. She added that this “allowed us to get started to deliver the program, but it was just for that biennium.” Over the next two years WSDOT plans to remove 25 barriers, with 90-100 projects in the design phase and ready to start once more funding is provided.

However, Mueller added that the state won’t be able to rely on underspent money when it comes time to budget for 2021-23. That’s when WSDOT will need $700 million every biennium if they’re to meet the 2030 deadline. The legislature may not also have billions in surplus revenue available as they did this year. Nor can they turn to the Public Works Trust Account that offers loans for public infrastructure projects like fish barrier removal, due to prior raids to cover new operating budget spending on basic education as part of the McCleary court order.

“This (fish barrier removal) was not a priority in the legislative session for anyone,” Myers said. “I do believe that we need to fix these culverts, not just because there’s a court order but because we know that it will open habitat and potentially have a positive impact on salmon population. It should have been more prioritized than it was.”

Adding to the complications is a disconnect between the legal mandate and best science practices. In addition to the culverts subject to the court injunction, there are also thousands of fish barriers located on county and city roads blocking salmon habitat access. According to the Washington Department of Fish and Wildlife (WDFW), for every WSDOT culvert in need of replacement there are another two downstream and five upstream barriers located on non-state property.

Association of Washington Cities Government Relations Advocate Carl Schroeder told Lens that the state will have to account for these other barriers as part of their planning if the investment is going to pay off in the long-term.

“They need to have a broader vision for what they’re trying to accomplish. You’re going to spend billions of dollars and not get the fish any further, which defeats the whole underlying reason why we’re making these decisions.”

Schroeder is a member of WDFW’s Brian Abbott Fish Barrier Removal Board, which approves a priority list for fish passage projects. This session, the legislature provided $26 million in funding for that work.

“The scale of investment isn’t what it needs to be,” he said. “The $26 million in this budget will help move us forward and do some planning for some very critical projects that have been vetted by this board. But when you’re talking about billions of dollars…it’s not going to get the job done.”

Right now, Mueller said WSDOT is prioritizing projects that maximize improvements to fish passage. That includes removing four barriers along state Route 3 at Chico Creek to open 21 miles of habitat for high-value chum salmon. Another project on U.S. 101 at Siebert Creek improves access to 34 miles of habitat by removing a single barrier.

One proposal made this session to tackle the local and county barriers was to allow for public-private partnerships similar to the “adopt a highway” program. Although it garnered support from private foresters who have already removed barriers on their land as part of the 1999 Forest and Fish Law, HB 2022 was unable to land a House floor vote.

Even if it did pass, Schroeder said “with the scale of need…it’s a useful thing to move forward with as part of the broader picture, but it’s not going to be just donations that is going to get this done.”

However, adding city and county barriers to the mix would mean a higher price tag that Schroeder says can’t be solved by expanding local government revenue authority such as a sales tax or transportation licensing fees.

“If you were to take that approach with this issue, you’d have big winners and losers” because the barriers aren’t necessarily located near an appropriately sized tax base, he added.

Myers said the state should look at how private foresters met a 2015 deadline to remove barriers on their land, and how they paid for it. “The reason we met the deadline (was) because there was a business revenue stream associated with those culverts. You could do a timber harvest, and while you were earning the revenue from the timber harvest you could use a portion of it to fix the culvert on the stream nearby.

“The problem is when instead of relying on an economy model to fund salmon recovery and salmon replacement you rely on a political model you get what we got,” he added. “If we rely on politicians, we’re not going to get there. We are not going to raise taxes by $700 million just for culverts.”

While the legislature was able to meet a 2018 deadline to satisfy the McCleary decision, Myers is skeptical they will be able to replicate that success with the latest court-imposed financial obligation. “I just think they will not meet the target.”

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